In an action, in which the nephews by affinity of the Lord President were defenders, his Lordship declined judging. The Court unanimously repelled the declinature, and ordered their determination to be marked in the books of Sederunt.
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In the action depending between these parties, the Lord President suggested a doubt, how far he was at liberty to vote, on account of his connection with Mr Henry Drummond, who was married to his brother's daughter.
This declinator was unanimously repelled, and the determination was ordered to be marked in the books of Sederunt.
The statute 1594. c. 212. prohibited judges from voting where their father, or brother, or son, was a party. By act 1681, c. 13. this prohibition was extended to all relations in the first degree, whether by consanguity or affinity; and it was further provided, ‘That no judge should sit or vote in any cause where he is uncle or nephew to the pursuer or defender.’ But as the latter part of the act did not, like the former, particularly exclude uncles or nephews by affinity, it had been found, That a judge might vote in the cause of one who was married to his niece, unless where the niece was the proper party, and the husband only called for his interest; 31st January 1712, Calder contra Ogilvie, No 12. p. 197.
Nota, About the same period, Lord Alva refused to decide as an Ordinary, in a question in which Mr Carruthers of Holmains was a party. This gentleman was his nephew by affinity; and his daughter was married to his Lordship's son. But the Court altered the judgment, and remitted the cause to the Lord Ordinary.
